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OBA Ethics Counsel

Ethics Opinion No. 156

Adopted October 8, 1952

QUERY

The Central Committee has asked the Ethics Committee for an opinion on a factual situation hereinafter briefly set forth, which facts are contained in a transcript of proceedings in which all parties concerned were examined; for obvious reasons names are omitted or fictitious names are used.

FACTS

The facts summarized brieflly [sic] are as follows:

Joe Doakes purchased an automobile from a dealer, giving said dealer two checks for the down-payment, each check was for $217.50; both checks were dated March 17, 1951. One check had in the lower left hand corner "Bal. $32.00". One check was run through the bank and returned marked "No Account". Both of these checks were handed to the Assistant County Attorney, who sent a constable for the maker of the checks, and which constable took the maker to the Assistant County Attorney's office, there the Assistant County Attorney threatened to file criminal charges against Joe Doakes, the maker of the checks, unless he would agree to pay off said checks by monthly payments. Joe Doakes agreed to pay him $50.00 per week, and he did pay certain weekly payments; however, he got behind on several occasions and the Assistant County Attorney wrote him at least two letters in which he threatened criminal prosecution if the payments were not resumed and kept to date. For instance in the letter of September 14, 1951, he wrote in part "if I have not received the $42.00 by Friday, September 21st, the warrant will be issued".

OPINION

Title 19 Okl.St.Ann. § 185b, provides that the county attorney shall not engage in the private practice of law. Not only is it prohibited by statute, but our court has said that it is against public policy for the county attorney to engage in the practice of law in civil cases other than in such cases as is by statute made his duty to act. See Aldridge v. Capps, 56 Okl. 678, 156 P. 624, 625.

A county attorney is a quasi judicial officer and he must be fair and impartial. 27 C.J.S. District & Pros. Attys § 14(1). When he uses his office as a collection agency he cannot be fair and impartial and represent the citizens of a state.

Our court in Hall v. State, 24 Okl.Cr. 197, 217 P. 229, said:

"... but a prosecuting attorney should not permit private individuals to use this penal statute as a means of making private collections or to compel the accused to make a monetary settlement of a private claim, or, failing to do so, suffer the odium and danger of a criminal prosecution. Such practice is especially repugnant to our conception of the proper use of criminal process, and is unethical when perpetrated by a private prosecutor, either with or without the consent of the prosecuting attorney. Weitz v. State, 24 Okl.Cr. 56, 215 P. 962.

(1, 3) 3. The impropriety of an attorney who is employed by and professionally represents a private person as his attorney, in a transaction concerning property later directly involved in criminal prosecution in acting as a special prosecutor in that prosecution, is manifest. In Weeks on Attorneys at Law, § 282a, it is said:

'The prosecuting attorney is a sworn minister of justice whose duty it is to see that the innocent are protected as well as that the guilty are brought to punishment, and who must stand indifferent as between the accused and any private party.'

We think no argument is necessary to demonstrate that a special prosecutor is a special assistant to the county attorney for the particular case in which he appears, with like duties and qualifications. 22 R.C.L. Prosecuting Attorneys, § 7.

In Steeley v. State, 17 Okl.Cr. 252, 187 P. 821, the court, quoting with approval from People v. Gerold, 265 Ill. 448, 107 N.E. 165, Ann.Cas.1916A, 636, said:

"The rule has long been firmly established that an attorney cannot represent conflicting interests or undertake to discharge inconsistent duties. ...

'This rule is a rigid one, designed not only to prevent the dishonest practitioner from fraudulent conduct, but as well to preclude the honest practitioner from putting himself in a position where he may be required to choose between conflicting duties.' 1 Thornton on Attorneys, § 174.

Again quoting from the Steeley Case:

'Such an officer (county attorney) is acting in a quasi judicial capacity, and he and those associated with him should represent public justice and stand INDIFFERENT AS BETWEEN THE ACCUSED AND ANY PRIVATE INTEREST. ... The canons of ethics of the American Bar Association and various state associations in this country are in accord on this subject...."'

As pointed out above the county attorney might be required to choose between conflicting duties. Canon 6 of the Canons of Ethics of the Oklahoma Bar makes it unprofessional to represent conflicting interests.

There are cases where disciplinary action of suspension or disbarment of a county attorney for using his office as a collection agency. See 7 C.J.S. Attorney and Client § 23, p. 760, Notes 61 and 62.

The assistant county attorney having used his office improperly has acted in an unethical manner is subject to disciplinary action by the Bar Association of the State of Oklahoma.